Negotiating Your Surrogacy Contract
It’s a wonderful thing when intended parents match with a surrogate. As their journey together commences, they develop a relationship like no other. Part of what helps this relationship be successful is having a surrogacy contract – or what Circle calls a Carrier Agreement – in place.
There are certain topics intended parents and surrogates shouldn’t discuss without the presence of legal representation. Lawyers handle such matters, and Circle’s Carrier Agreement allows the intended parents and surrogate to agree on a number of topics before beginning the surrogacy journey. Some of these items include the IVF clinic that will be handling the medical screening and transfer, the number of embryos to be transferred, costs for maternity clothing, insurance coverage, and others that are discussed in more detail below.
As you’ll want to give close consideration to your Carrier Agreement, here is a list of the topics that are covered so you can be prepared.
Recitals. In general, the state law that will govern the carrier agreement will be the law of the state in which your carrier lives and will deliver. The recitals also address the intentions of all parties entering into the agreement: the understanding that the intended parents will be established as the legal parents of the child, and the surrogate will have no legal interest in the child following the delivery.
Number of transfers. Gestational carriers commit to up to three (3) transfers with their intended parents (if needed). If the case that the first transfer is not successful, your IVF Physician will make the determination if you should move forward with your carrier for another transfer, or if there is an embryo quality issue. There are times that a party or the state’s surrogacy statue require that all three (3) transfers happen within a certain amount of time from signing the agreement (such as within 12 or 18 months).
Travel. Once your Carrier Agreement is signed, your surrogate is not to travel internationally. Once your carrier is in her second trimester, she cannot travel to Michigan, Nebraska or Louisiana, due to unfavorable surrogacy laws in those states. If your surrogate wishes to travel out of state during the third trimester, it must be agreed upon in writing with the intended parents and approved by the surrogate’s healthcare provider.
Medical Instructions. The carrier agrees to follow all IVF physician medical instructions, until she is released to her obstetrician’s care, at which time she will follow her obstetrician’s medical instructions. You will also discuss reasonable limitations on your carrier’s activities once the carrier agreement is signed and/or while she is pregnant.
Miscarriage, Abortion, Selective Reduction. While it is everyone’s goal for a successful pregnancy and birth, it’s important to have discussions about potential termination. This section of the Carrier Agreement is in place to allow intended parents to request a termination in the event of in utero abnormalities, mental or physical handicaps, or other chromosomal abnormalities, with the surrogate’s termination timeline. All parties must be on the same page on this topic in order to proceed. While this is written into the Carrier Agreement, it is difficult to determine what a court would do in the event your surrogate breached her contract and didn’t terminate. You should discuss this in detail with your legal counsel.
Insurance. When you are presented with a surrogate match, you will be notified if your carrier’s insurance was approved for a surrogacy journey or if we will be utilizing a standalone maternity insurance policy for the surrogacy pregnancy. In either case, Circle Surrogacy will purchase a complications insurance policy on behalf of your surrogate. The funds for the complications policy are included in the fees you pay to Circle. A life insurance policy will also be purchased on behalf of your carrier. Additional insurance may include a bedrest policy (if your carrier requires bedrest); your carrier will be reimbursed for either childcare and housekeeping or lost wages. Intended parents are responsible for all newborn expenses.
Pumping. Some intended parents and gestational carriers agree to have her pump breast milk. If and when the parties agree to have a carrier pump, a weekly fee would be discussed, inclusive of shipping costs.
One other topic to consider that may not be in your contact is communication with your surrogate. How often would you like to communication with your gestational carrier. To manage expectations, intended parents and surrogates may choose to determine how many times a week/month they will communicate…something that can always be amended along the way, especially as the relationship grows organically.
If you’re a tad overwhelmed, don’t be. Circle’s legal team is ready to assist you every step of the way, ensuring a finalized Carrier Agreement with which you are comfortable.
Learn more about becoming a parent through surrogacy and your surrogacy contract on our website!